Case details

Pedestrian blamed path’s closure for vehicle striking her





Result type

Not present

closed head, cognition, depression, face, facial, fracture, head, impairment, leg, mental, nose, psychological
On Sept. 12, 2008, plaintiff Melissa Hernandez, 16, a student was walking north on the eastern side of Atlantic Boulevard in Long Beach, approaching a bridge that crosses the Los Angeles River, when she was struck by a station wagon driven by an unlicensed driver, Gilbert Mariscal. Hernandez claimed she suffered a closed-head injury and orthopedic . Hernandez sued Mariscal; the owner of his vehicle, Susana Morales-Martinez; and several municipal entities believed to be the owners and/or maintainers of the roadway, including the city of Long Beach. She alleged that Mariscal was negligent in the operation of his vehicle and that Morales was vicariously liable for his actions. She also alleged that the other defendants were negligent for failing to properly maintain the area, creating a dangerous condition of public property pursuant to Government Code § 835. Mariscal and Morales-Martinez agreed to settle with Hernandez by tendering their $15,000 policy limits. All other municipal defendants were dismissed once the city of Long Beach acknowledged jurisdiction and control of the subject area. Plaintiff’s counsel contended that the city of Long Beach created a dangerous condition on the road by fencing off a pre-existing dirt path previously used by pedestrians to gain protected access to a bridge. Thus, counsel contended that the fencing forced pedestrians to walk on the roadway surface in order to gain access to the bridge. Plaintiff’s counsel further contended that the city failed to warn pedestrians that they would be forced to walk close to the roadway edge. The city of Long Beach denied any dangerous condition existed. The city’s counsel noted a lack of other accidents on the roadway and asserted that the proximate cause of the accident was Mariscal’s actions. Counsel contended that Mariscal failed to pay proper attention as he was engaged in an argument with the occupants of the vehicle next to him when he struck Hernandez. The city’s counsel further asserted that Hernandez should have walked on the western side of Atlantic Avenue, where there was a pedestrian sidewalk. Counsel contended that at the area of impact, the roadway was the width of a standard roadway and sidewalk combined and that if a sidewalk had been in place, Mariscal’s vehicle would have jumped the sidewalk and still struck Hernandez., Hernandez was taken from the scene via ambulance to Memorial Hospital, where she underwent surgery to repair an orbital fracture. She also underwent surgery to repair tibia and fibula fractures with the implantation of an internal fixator, and surgery to repair a pelvic fracture with internal fixation. She also claimed she suffered a closed head injury. Upon release from the hospital, Hernandez underwent a course of physical therapy. Hernandez claimed that she suffers memory problems, difficulty with concentration, and depression, as a result of the closed head injury. She also claimed that she suffers from headaches, ankle pain and leg pain. Hernandez alleged that as a result of her residual problems, she had to curtail many of her favorite activities, such as exercising and taking long walks. Plaintiff’s counsel stated that Hernandez has accumulated over $300,000 in medical expenses, and will need continued medical monitoring and physical therapy. Defense counsel acknowledged the orthopedic and contended that Hernandez had healed well from those , citing the plaintiff’s lack of treatment after her initial hospitalization and therapy. However, counsel disputed that Hernandez had any cognitive impairment related to the incident, and cited the plaintiff’s post-accident marriage and birth of a child as evidence of lack of accident-related . Defense counsel further cited external causes for any alleged post-accident depression.
Superior Court of Los Angeles County, Long Beach, CA

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